1. When was the European Union Directive on certain permitted uses of orphan works incorporated into the Greek law and what does it concern?

Greek copyright Law 2121/1993 was amended by Law 4212/2013 (published in Issue A, No. 257/2013 Official Gazette) in order to incorporate into Greek law the provisions of Directive 2012/28/EE of October 25, 2012.

This Directive concerns certain uses of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organizations, established in the Member States, in order to achieve aims related to their public-interest missions.

This Directive concerns certain uses of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organizations, established in the Member States, in order to achieve aims related to their public-interest missions.

2. What are the orphan works?

Orphan works are works which are protected by copyright or related rights and whose rightholder(s) has not been identified or, even if identified, cannot be detected despite the fact that a diligent search has been conducted by the institutions who use the orphan works.

3. What works does the directive apply to?

(a) works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions;

(b) cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions; and

(c) cinematographic or audiovisual works and phonograms produced by public-service broadcasting organizations up to and including 31 December 2002 and contained in their archives;

(d) works and other protected subject-matter that are embedded or incorporated in, or constitute an integral part of, the works or phonograms referred to in paragraphs 2 and 3.

The above works are protected by copyright or related rights and are first published in a Member State or, in the absence of publication, are first broadcast in a Member State. If these works have not been published or broadcast, they may be used by the institutions provided that:

a) they have already been made publicly accessible by any of the institutions who use orphan works (be it under loan) with the consent of the beneficiaries and

b) if it is reasonable to assume that the rightholders would not oppose to the permitted uses.

4. Who are entitled to make use of orphan works (institutions that use orphan works)?

a) Libraries

b) Educational establishments

c) Museums

d) Archives

e) Film or audio heritage institutions

f) Public-service broadcasting organizations established in the Member States, in order to achieve aims related to their public-interest missions.

5. Which are the permitted uses of orphan works?

Once a work is considered to be orphan the institutions who use orphan works may:

a) Reproduce it for the purposes of digitization, making available, indexing, cataloguing, preservation or restoration.

b) Make the orphan work available to the public. The above uses should be related to their public-interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection. The organizations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitizing orphan works and making them available to the public.

The use of orphan works should always be conducted with the indication of the name of the identified authors and other rightholders, who cannot be located and the notice: “Orphan work:….[registration number in the Office for Harmonization in the Internal Market.]”

6. What is the process of “diligent search”?

For the purposes of establishing whether a work or phonogram is an orphan work, the institutions who use orphan works shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by obligatorily consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.

The list of these sources is formed by the Hellenic Copyright Organization, after consultation with stakeholders and in accordance with the provisions of the relevant EU Directive.

Where the rightholders (or one of the rightholders) of copyright or related rights of a work is identified but cannot be located, the diligent search should be conducted in the local population registers of the country according to his place of birth or habitual residence.

A diligent search shall be carried out by the institutions who use orphan works- or by others on behalf of those institutions-in the Member State of first publication or, in the absence of publication, first broadcast, except in the case of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State, in which case the diligent search shall be carried out in the Member State of his headquarters or habitual residence.

In the absence of first publication or broadcast the diligent search shall be carried out in the Member State where the organization that made the work or phonogram publicly accessible with the consent of the rightholder is established.

If there is evidence to suggest that relevant information on rightholders is to be found in other countries, sources of information available in those other countries shall also be consulted.

The institutions who use orphan works maintain records of their diligent searches and use of the works for seven (7) years after the end of the use and provide information to the Hellenic Copyright Organization who shall immediately notify the single electronic database of the Office for Harmonization in the Internal Market.

The document relating to information which are to be provided by the institutions to the Hellenic Copyright Organization will be available from HCOs’ website as soon as the database of the Office for Harmonization in the Internal Market is be completed.

Diligent search is not required for works or phonograms which are already registered as orphan in the electronic database of the Office for Harmonization in the Internal Market. If a work is considered an orphan work in a Member State, it shall be considered an orphan work in all Member States.

In any case, if it turns out that due to improper and bad faith search a work has been incorrectly identified as an orphan, the provisions of Articles 63A to 66D of Law 2121/1993 shall apply.

7. What happens in case a work has more than one rightholders?

If a work or a phonogram has more than one rightholders and not all of them have been identified or, even if identified, have not been located after a diligent search process, the work or phonogram, may be used in accordance with the preceding paragraphs, provided that the rightholders that have been identified and located, have licensed the institutions who use orphan works to proceed with the permitted uses of the work in relation to their rights.

8. What happens in case the rightholder of a work registered as orphan, comes forward?

If a rightholder of a work or phonogram, or other protected work registered as an orphan comes forward, he is entitled to terminate the status of orphan work as to his rights, ask for the termination of use of the work by the institution and require compensation for the use of his work up to that time. The institution who uses the orphan work is responsible for the termination of its status as orphan. It decides within twenty (20) working days, starting from the day the rightholder submitted the application, whether such application and the information provided therein are sufficient to establish entitlement to the particular orphan work, and either classifies it as “non-orphan” or rejects the application. If the institution who uses the work, does not process on the application within that period of time or if despite having accepted the application as valid it continues to make use of the work, the provisions of Articles 63A to 66D of Law 2121/1993 apply.

When a work is registered as a "non-orphan", in accordance with the Uniform Electronic Database of the Office for Harmonization in the Internal Market, the institution shall stop any use of that work within ten (10) working days from the receipt of the notice from the upper Bureau.

The compensation amounts to half pay which is normally legally paid for the kind of use made by the institution and is attributed to the rightholder within two (2) months of the termination of the status of work as orphan. In case of disagreement of the parties, the terms, the period and the amount of compensation is determined by the First Instance Court of Athens on the application for interim measures.